Opinion
98 CR 196.
September 5, 2001
ALAN VINEGRAD, Eastern District of New York (Lauren Resnick, of counsel) Brooklyn, NY., United States Attorney.
DIARMUID WHITE, ESQ., BRENDAN WHITE, ESQ. New York, New York, Attorney for Defendent-appellant Schwarz.
RONALD P. FISCHETTI, ESQ., New York, New York, Attorney for defendent-appellant Shwarz.
MARK L. FREYBERG, ESQ., New York, New York, for defendant appellant Schwarz.
RICHARD M. ASCHE, ESQ., RUSSELL M. GIOIELLA, ESQ., Litman, Asche Gioiella, LLP, New York, New York, attorney for defendent appellant Wiese.
JOSEPH TACOPINA, ESQ., New York, New York, attorney for defendant appellant Wiese.
STUART LONDON, ESQ., Worth Longworth Bamudo London, New York, New York, attorney for defendent-appellant Bruder.
JEREMY GUTMAN, New York, New York, attorney for defendant appellant Bruder.
MEMORANDUM AND ORDER
New York City Police Officer Charles Schwarz was convicted of violating, and conspiring to violate, the civil rights of Abner Louima by sexually assaulting him in the bathroom of the Brooklyn 70th precinct station house on August 9, 1997, and for conspiring to obstruct justice. In two trials, two separate juries found Schwarz guilty. Schwartz now appeals, and the Court of Appeals has remanded the case.
The remand is for the limited purpose of determining whether an affidavit by a retired police sergeant, in combination with other materials, provides a basis to conclude that the government failed to comply with Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972), or a basis to grant a motion for a new trial.
The court held an evidentiary hearing and determines that there is no basis to conclude that the government failed to comply with its obligations and no basis for granting a new trial.
I
In United States v. Bruder, 103 F. Supp.2d 155, 160-175 (E.D.N.Y. 2000), this court described in some detail the factual history of the case and reviewed the evidence from both trials establishing defendants' guilt. To set in context the issues this court is asked to decide, the court summarizes some of the pertinent trial evidence.
Abner Louima's testimony was crucial to the government's case at trial. In his testimony Louima described "the driver" of the patrol car that took him to the police precinct as the officer who held him by the handcuffs behind his back, while Volpe thrust a stick into his rectum. The evidence established, indeed it was stipulated, that Schwarz was "the driver."
Louima consistently testified that "the driver" was the man holding him during the bathroom assault. This identification was not based on seeing Schwarz and the passenger, Wiese, solely from behind in the back of the patrol car. Louima said "the driver" was "bigger" than the passenger. Other evidence established that Schwarz was in fact substantially taller, and more heavy set, than Wiese.
Louima testified that it was "the driver" who put him in handcuffs outside the nightclub, testimony corroborated by other witnesses. He also testified that "the driver" and others assaulted him in the patrol car (though they were acquitted of this assault), and that during the trip to the stationhouse, when "the passenger" told "the driver" that Louima was bleeding, "the driver" stopped the car, turned and looked back at Louima, then continued driving.
Louima identified "the driver" as the officer who took him out of the patrol car, led him inside the precinct to the front desk, and searched him there. "The driver" loosened Louima's belt, causing his pants to fall down. "The driver" then put his hand in Louima's pocket and removed his wallet, money, and other papers, and then took his pedigree information at the front desk. Thus, Louima's exposure to "the driver" was sustained, even intimate, before "the driver" took him to the bathroom.
Louima's testimony as to the trip from the front desk to the bathroom was unequivocal. When he was asked "what happened next" after standing alongside Schwarz at the front desk, Louima answered "he take me to the bathroom." Question: "Who took you to the bathroom?" Answer: "The driver." Louima described how he was not able to move well because his pants were down to the knees, and "the driver" was pushing him.
Sergeant Jeffrey Fallon, who was desk sergeant at the precinct that morning, testified that Louima was not led away from the front desk until after the pedigree card was filled in and the cash was counted and returned to Louima. Fallon recorded the arrest in a "command log" at 4:50 a.m., and testified that he made that entry after the arrest paperwork was complete. The command log shows that Louima's cash was "counted and returned pending vouchering" at that time.
Fallon recalled that, after receiving the completed pedigree card, he ordered that Louima be taken to a cell in the back of the station house. Fallon testified that when he gave that order, Schwarz was "right up next to [Louima]" and "just pretty much [had] control of [him]."
Before they got to the bathroom, Louima heard somebody coming from behind, turned his head, and "there was another officer," Volpe. After Volpe and "the driver" both hit Louima while he was handcuffed on the bathroom floor, "the driver" pulled Louima up by the handcuffs, and Volpe thrust the stick up his rectum while "the driver" held him.
Defense counsel for Schwarz asked Louima on cross examination to identify Schwarz:
Q: Can you identify that man as the driver? (Indicating Schwarz)
A: It looks like the driver but I'm not sure because they're only males. The driver and the passenger, they look alike.
Trial Tr. at 923-24.
Louima's identification ("It looks like the driver") is undercut by his uncertainty ("but I'm not sure"), but not enough to make the identification valueless, and certainly not enough to undermine his extensive testimony about "the Driver's" role in the assault.
Louima's testimony is confirmed by Officer Mark Schofield, who testified that he saw Schwarz leading Louima "from in front of the front desk, around [the front end of] the 124 Room, [and] toward the back area." The two passed "two to three feet" in front of Schofield, who was standing near the front desk area with a view down the hallway leading to the back of the station house. He said Louima's pants were down, that he "was rear handcuffed," and was shuffling with his feet like his pants were restricting his movement." Schofield said his last view of Louima and Schwarz was near the end of the hallway leading to the back of the station house "towards . . . the 124 Room" and the bathroom.
Contrary to the defense argument that Volpe alone assaulted Louima while he was lying on the floor, abundant medical testimony corroborated Louima's account of how his injuries were inflicted. According to the medical testimony, Louima could not have been in a horizontal position, but had to be in a bent position, and the force that caused his injuries could not have been inflicted by one man trying to hold Louima in that position at the same time.
Louima's testimony was also corroborated by Officer Eric Turetzky. Turetzky was clear from beginning to end, never expressed doubt, and never changed his testimony in two trials and in the hearing before this court, that he saw Schwarz lead Louima away from the front desk to the back of the precinct then turn and start to take him down the short hallway leading to the bathroom. Turetzky told state investigators that he saw Schwarz "put the [pedigree] card on the top of the [front] desk" before Louima was lead away. Turetzky's account, far from being the government's only evidence of the trip down the hall to the bathroom, was simply corroboration for Louima's account.
The court found Turetzky manifestly credible in each of Schwarz's two trials and equally credible in the hearing.
Schwarz obviously would not have been convicted solely on Turetzky's testimony. But Walsh's affidavit does not call into question either Louima's testimony or the corroborating testimony of police officers Schofield or Fallon concerning Schwarz leading Louima away from the front desk and down the hall toward the bathroom. Schwarz's argument is framed as if Louima, Schofield, Fallon, and the other evidence supporting Louima's account did not exist. Walsh's affidavit does not undermine Schwarz's conviction in either trial.
II
In contrast to the evidence introduced at trial, the court did not find Walsh very credible. Walsh testified that he waited four years to come forward with his story because he "was always waiting for someone to knock on the door." See H. Tr. at 52. He said that Richard Bruno, Schwarz's brother-in-law, approached him while he was tending bar in Staten Island in February of 2001. Walsh said he had known Bruno for a few years as "the integrity control officer of the six-two precinct" and that they had "a working relationship." H. Tr. at 46. Walsh says he did not agree to come forward immediately, but took a couple of days to think about it. Bruno had to call him back to secure his testimony. See H. Tr. at 121.
When asked by Schwarz's counsel how he had retained his attorney, Walsh responded, "You had recommended him — well, actually I spoke to Richard Bruno, who recommended [the attorney] to me, and said that I would be represented at no charge in regards to this case." H. Tr. at 45. But later he admitted that Schwarz's counsel arranged for his attorney to represent him. See H. Tr. at 65-66. Bruno picked up Walsh at home, took him to the meeting with counsel, stayed for the meeting, and drove him home. See H. Tr. at 121-22.
Walsh was a Sergeant in the Brooklyn South Investigations Unit. He was at the 70th precinct on the night of August 14, 1997, with his partner Sgt. Tully, to investigate a police officer's shooting of a dog. Captain James Peters, then filling in for another captain on the 11:00 p.m. to 7:00 a.m. shift at the precinct, was serving as duty captain for the investigation. The three testified that they spoke with Eric Turetzky in the commanding officer's office at approximately 2:00 a.m. on August 15, 1997. The testimony of the four men differs in many of the details of this encounter but no one corroborates Walsh's version of events.
A. Walsh
Walsh describes himself as in control of the interview, asking all the questions and giving all the directions. For example, he testified that when Turetzky first arrived in the captain's office, "I tried to calm him down the best I could. I told him to take a seat. At that point I started my interview of Eric." H. Tr. at 16. In fact, the other three men said that Turetzky's statements were largely self initiated, and that Peters, as the highest ranking officer, was giving directions and controlling the interview situation. See, e.g., H. Tr. at 149, 171, 219.
Walsh states in his affidavit, "Turetzky told me that he had seen . . . Volpe escorting Louima from the direction of the bathroom and holding a stick which Volpe hit against the wall." But on cross-examination Walsh admitted that the statement was not accurate. He said, "I've never stated to other people that Turetzky told me that he saw Volpe walking Louima out." H. Tr. at 61. But then he admitted saying exactly that to prosecutors thirteen days before the hearing. See H. Tr. at 62.
Walsh says in his affidavit, "In response to my inquiries concerning how Louima came to be in the bathroom, Turetzky said that he saw either . . . Wiese or . . . Schwarz walking Louima toward the bathroom, but that Turetzky could not say which officer it was because he only saw them from the rear and Wiese and Schwarz look alike from that position. I went over Turetzky's observations numerous times, and he repeated each time that he could not tell whether the officer he was walking Louima toward the bathroom was Wiese or Schwarz [emphasis added]."
Walsh said that the discussion of the escort to the bathroom occurred at the beginning of the interview, a time when all of the officers agree that they were all in the room. See H. Tr. at 65. Every other witness to Turetzky's interview either does not recall Turetzky speaking of this at all, or recalls only his confusion about Louima's later escort from the bathroom.
In his testimony, Walsh also said that "the only thing he [Turetzky] was 100 percent sure of was that Police Officer Thomas Bruder was not there." H. Tr. at 34, 63. Walsh testified that he later repeated this statement to Polovoy. See H. Tr. at 36. But Walsh did not include the statement about Bruder in his affidavit.
Walsh's memory of other details of the interview are also contradicted by the other witnesses. For example, he said in his affidavit and in testimony that Turetzky called his mother and said, "Hi, Mom. I spoke to Sergeant Walsh. He said everything is going to be okay. I did the right thing." H. Tr. at 26. Turetzky says that he in fact spoke with his grandmother, not his mother, and never mentioned Sgt. Walsh. See H. Tr. at 357.
Walsh also said that he had met Turetzky once before August 15, 1997, and once after. He said that he thought he might have "GO-15'd," or interviewed Turetzky, on a dog shooting. See H. Tr. at 53. Turetzky testified that he had never met Walsh before the morning of August 15, 1997, and has never been "GO-15'd." See H. Tr. at 359.
Walsh also was mistaken about who was present that night. In his affidavit, he stated that "following the interview, I telephoned I.A.B. (Internal Affairs Bureau) Capt. Barry Fried at his home. Captain Fried was the I.A.B. Commander with jurisdiction over the 70th Precinct." Walsh's affidavit goes on to say that "Capt. Fried then arrived with Lt. John Polovoy, also of the I.A.B. ." At the hearing, Walsh admitted that statement in his affidavit concerning Polovoy was mistaken. He said that although he had stated in the affidavit that it was Polovoy, he now thought that it might have been Lieutenant Richard Coscia from I.A.B. . See H. Tr. at 32.
Walsh's medical and employment history further weaken his credibility. Walsh retired from the police department on June 30, 2000, at age 37, on disability with cirrhosis of the liver. He admits to "drinking heavily either from September to November of 1998 till May of 1999." H. Tr. at 44. His brother, a police officer, reported Walsh's drinking problem to the police department, and Walsh was admitted to the department's alcohol counseling unit in May of 1999. Walsh claimed that among the causes of his drinking was that "this case haunted" him. Id. But he never said anything about the case in counseling. See H. Tr. at 115.
When Walsh was asked how much he drank on a daily basis at the time that he entered alcohol detoxification, he first responded, "maybe three beers, maybe five beers, maybe ten beers." But he then admitted that he drank an average of two six-packs of beer per day, along with whiskey and scotch. H. Tr. at 109-110.
Although Walsh denied that he ever drank while at work or told the counselor he did, see H. Tr. at 116, Sergeant Denise Valentin, the counselor who first interviewed Walsh at the Alcoholic Counseling Unit, testified that she remembered asking Walsh whether or not he sneaks drinks and/or drinks while working, and that "[t]hat's a question that we ask every client that comes in." H. Tr. at 292. She said she remembered that Walsh answered "Yes." H. Tr. at 285, 292. Valentin noted this in Walsh's alcohol rehabilitation records. See Gov. Exh. 3.
Walsh admitted that he first attended Alcoholics Anonymous in 1991, and said he stopped drinking for a year because he thought he had a drinking problem. He confirmed that he had a liver scan about ten years ago, and was diagnosed with cirrhosis of the liver. Walsh said that prior to September of 1998, he did not drink daily, but "maybe twice a week . . . [t]hree, four, five beers." H. Tr. at 112. He denied that he had been drinking that much daily for ten years. Id.
The Government submitted documentation of a Medical Board interview on December 22, 1999, for Walsh's disability retirement, in which he told a panel of three doctors that he drank on average three to five beers a day for ten years. H. Tr. at 115. Walsh denied that he ever told the doctors this, and astonishingly, said that the doctors' records were "an obvious error." See H. Tr. at 113, 115, 123-24.
Though Walsh admitted to giving false excuses to the department when he stayed out of work because of his drinking, he was stubbornly reluctant to admit that on these occasions he was being deceitful. See H. Tr. at 125-26.
The severity of Walsh's alcoholism is relevant to his ability to perceive and remember accurately the specific statements that he, and no one else, says Turetzky made in the interview, concerning whether Schwarz or Wiese took Louima to the bathroom, not from the bathroom to the cells.
Peters and Fried both made clear that the part of Turetzky's statement that most interested investigators on August 15, 1997 was that he "put a stick in another officer's hand." See H. Tr. at 172, 300, 306. Up to that point, no officer had come forward to identify any other officer involved in the Louima assault. The topic Turetzky was questioned about first and foremost was seeing Volpe with a stick, while coming out of the bathroom with Louima.
If Walsh heard Turetzky say anything about Schwarz and Wiese looking alike from behind, then it may have been his own interpretation that Turetzky was referring to Louima's escort from the front desk to the bathroom.
Such a misinterpretation may explain why no other witness corroborates this, and all other witnesses testified that Turetzky expressed confusion between Schwarz and Wiese only over the issue of who escorted Louima from the bathroom to the cells. On cross examination, Walsh was asked:
Q: Sir, isn't it a fact that what Eric Turetzky was not sure about when he spoke to you was who took Mr. Louima out of the bathroom and not who took Mr. Louima to the bathroom; isn't that what happened?
A: That was not apparent to me due to he said he saw them from behind. If somebody was coming out of the bathroom you wouldn't see them from behind, you would see their faces.
He specifically said to me it was either Officer Wiese or Officer Schwarz, I couldn't be sure who it was, I only saw them from behind and they both had the same hair color and the same hairstyle.
So it became apparent to me that he saw them walking into the bathroom not out of the bathroom.
Q: You say apparent. Do —
A: That's what it established to me. Those were his exact words on August 15 of 1997, that he could not identify who brought Abner Louima into the bathroom because he only saw from behind.
* * *
Q: There's no possibility whatever, is there, that you've got it confused?
A: Not unless they walked out of the bathroom backwards.
* * *
Q: Did Officer Turetzky tell you where he was standing when he saw this?
A: He said he was behind them.
Q: Did he tell you where he was standing when he saw Officer Volpe coming out of the bathroom? Yes or no?
A: He just told me that he saw Volpe walking out with the stick.
Q: Do you know what vantage point Eric Turetzky had when he made that observation?
A: I didn't ask him that.
Q: Do you know whether or not he saw the front of Volpe's face, the side of his head, or the back of his head when he made that observation; yes or no?
A: No, I do not.
* * *
Q: Do you know what vantage point Eric Turetzky had when he saw Mr. Louima being escorted away from the front desk and to the bathroom; yes or no?
A: As an investigator, from what he told me —
Q: I object. Move to strike.
The Court: You asked him what he knows.
Q: Withdrawn. I'll rephrase. Did Eric Turetzky tell you what his vantage point was when he saw Mr. Louima being escorted from the front desk to the bathroom; did he tell you?
A: Did he tell me? Well, he didn't tell me exactly where he was standing, but he saw — he said I saw them from behind. So I can assume he was behind them.
Q: Did he tell you where he was standing?
A: Not specifically, no.
Q: Or what he was doing, or what he was doing at the time he made this observation, standing still, walking?
A: I didn't ask him.
H. Tr. at 106-109 (emphasis added).
Walsh did not testify that Turetzky specifically said he was confused about who took Louima to the bathroom. Rather, he testified that he "assume[ed]," "as an investigator," that Turetzky was "apparently" talking about the escort to the bathroom.
Walsh also betrayed confusion about which escort, to or from the bathroom, he was talking about when he stated, "He [Turetzky] told me that he saw Justin Volpe come out of the bathroom holding either a broken mop handle or broom handle. I thought to myself, well, somebody had to still be in the bathroom with him or, somebody brought him to the bathroom." See H. Tr. at 22 (emphasis added). This is significant in light of the fact that Walsh insisted that he was "1,000 percent sure" that Turetzky was confused about who took Schwarz to, not from, the bathroom. See H. Tr. at 22.
Walsh also testified that "[e]verybody in BSIU was aware of my statements." H. Tr. at 101, 102, and that "it was a topic in Brooklyn South for a long time." H. Tr. at 95. He also said that despite telling "so many people [he] can't even remember the names," his account "unfortunately" remained a secret for four years. See H. Tr. at 102.
If Walsh told his story to as many people as he says he did, it is hardly conceivable that the defense would not have known the substance of his version, or at least that he had a version that might contradict other witnesses. The proposition that this remained a secret for four years is even more untenable. Richard Bruno, Schwarz's brother-in-law, produced Walsh for the defense team four years later. It is hardly credible that Schwarz's attorneys were unable to produce Walsh in time for the first trial.
Walsh's denial of the scope of his alcoholism, exaggeration of his own importance in this episode, and his claim that he was "waiting for a knock on the door," all undermined his credibility. Walsh's inconsistent statements and unreliable memory, and especially the material disparities between his and all other witness's version of the same events, rendered his testimony unconvincing, to say the least.
B. Peters, Tully and Fried
The testimony of the other officers present is generally consistent with one another and with Turetzky, although each differs in important respects from Walsh's testimony.
1. Peters — In direct testimony under questioning by defense counsel, Peters said that Turetzky told them "that he saw Police Officer Volpe exiting the bathroom on the first floor with a stick in his hands. In one hand." H. Tr. at 149. Peters says he was gone from the room between five and ten minutes when a Police Benevolent Association ("P.B.A.") delegate interrupted the meeting and asked Turetzky what he was doing. Peters said he talked to the delegate outside the office, then told the front desk officer that he wanted no one else knocking at the door or coming into the office. See H. Tr. at 155-56.
Peters says that when he returned to the office, Turetzky " discussed the escort of the prisoner from the bathroom to the cells [emphasis added]." See H. Tr. at 159. He testified that Turetzky made a comment that he was only assigned to the precinct for a short time and did not know everyone yet. When he was asked again, Peters said Turetzky "says something to the extent of, you know, their hair styles are similar, the length, the color. They look a little similar in the face. He was talking about Officer Wiese and Officer Schwarz." H. Tr. at 160.
But Peters said that Turetzky never said anything to the effect that he had seen Schwarz and Wiese only from behind, and that he was answering questions about how Louima got from the bathroom to the cells, not from the front desk to the bathroom. H. Tr. at 161-62. Peters did not recall Turetzky mentioning Bruder at all. See H. Tr. at 175.
Peters said that Turetzky was extremely agitated about the fact that other officers in the precinct knew he was he was talking to internal investigators. Peters said he terminated the interview, believing it safest to call Internal Affairs officers and "let them transport him out to a safer place where maybe he will feel a little more comfortable." See H. Tr. at 170.
2. Tully — Sergeant Tully did not recall that Turetzky ever expressed uncertainty about whether it was Schwarz or Wiese who escorted Louima to the bathroom from the front desk, or saying that he saw them only from behind and they look similar from that position. See H. Tr. at 201, 214, 232-33. He remembered Turetzky saying that he saw "Louima in the front desk area and that his pants were already down," but he could not be sure if Turetzky mentioned that Schwarz was at the front desk. See H. Tr. at 200-01.
Walsh also testified that Tully was in and out of the interview because he was doing paperwork on the dog shooting. See H. Tr. at 70. But Peters's and Tully's accounts dispute this. See H. Tr. at 167, 202. It strains credulity to believe that at the moment when the first officer to come forward in the Louima case is telling his story, Tully would leave to finish such paperwork.
Tully says that he left the office with the P.B.A. delegate who interrupted the meeting, but says that was after Turetzky had finished telling his story. Peters says that the delegate came in approximately 20 minutes into the interview, and no one had left the room until then. See H. Tr. at 150, 167.
3. Fried — Captain Fried testified that he never spoke with Walsh either prior to or after meeting him at the 70th precinct on August 15, 1997. Fried said that, contrary to Walsh's affidavit, Fried did not have any discussion with either Walsh, Tully or Peters about writing up Eric Turetzky's statements. See H. Tr. at 313.
Fried said that Turetzky told him about having seen Volpe with a stick, and then Fried told him to go with Sergeant Tully to "dress down," empty his locker and come with Fried, Grossman and Coscia to the I.A.B. office. See H. Tr. at 309-310, 358.
4. Polovoy and Medrazzi — Lieutenant John Polovoy of the I.A.B. was assigned to the joint I.A.B. and F.B.I. task force investigating the Louima matter. He testified that he had not been at the 70th precinct on the morning of August 15, 1997, and did not know Walsh. H. Tr. at 181, 192.
Polovoy specifically denied having ever spoken with anyone who said he had interviewed Eric Turetzky when he met with Inspector Frank Clinton at Brooklyn South Investigations Unit, which he did not do until 1999. See H. Tr. at 187, 193. This directly contradicts Walsh's affidavit and testimony that Polovoy spoke with Walsh at Brooklyn South approximately two weeks after the Turetzky interview, and asked him what Turetzky had said on August 15th regarding Schwarz and Wiese. See H. Tr. at 36.
Walsh also said he spoke of his concerns about Turetzky's identification of Schwarz with Inspector Edward Mezzadri, one of Walsh's superiors at Patrol Borough Brooklyn South, and with Captain Delayne Hurley, the commanding officer of Brooklyn South Investigations Unit during the time of the Turetzky interview. Neither man corroborated Walsh's account, and both said Walsh never spoke to them about having any concern about Turetzky's statements. See H. Tr. at 239-41, 262-66.
C. Turetzky
Officer Turetzky's version of the interview is also inconsistent with Walsh's and consistent with the other witnesses' accounts. Turetzky said that he explained to Peters, Walsh, and Tully at the meeting that he "observed Officer Schwarz searching who I later learned to be Mr. Louima, that at some point during the search his pants had come down below his knees, around his ankles. I explained to them I observed Officer Schwarz escorted [sic] Mr. Louima from the front desk area toward the arrest-processing room but not enter the arrest-processing room." H. Tr. at 352.
Walsh claims that Turetzky said he was new to the stationhouse and confused Schwarz and Wiese because they have similar hairstyles and color. Turetzky in fact had worked at the station house for a year and three months at the time of the incident, and worked the same shift with Schwarz for about three months. See H. Tr. at 349.
Turetzky said that he was not confused as to who took Louima from the front desk towards the bathroom, and he does not recall saying that Schwarz and Wiese look similar. H. Tr. at 354, 370. He said that he does not have trouble distinguishing between Schwarz and Wiese. See H. Tr. at 371.
Turetzky did express uncertainty to Fried, later during the I.A.B. office interview, about who led Louima from the bathroom to the cells. He said that his vision was fixed on Volpe during that event, and had concluded that Schwarz or Wiese must have taken Louima from the bathroom to the cells "because they had contact with the prisoner." But he corrected himself and realized that it was Volpe who, while holding the stick, led Louima from the bathroom to the cells. H. Tr. at 355.
Turetzky was asked about his statement to Fried that he thought "Volpe, Schwarz and Wiese" would be in trouble. See H. Tr. at 365-66. He said that he thought Wiese might be in trouble because of Louima's allegations of having been beaten several times in the patrol car on the way to the stationhouse by Volpe, Schwarz and Wiese. H. Tr. at 373.
The court found Turetzky's testimony at the hearing to be reliable, consistent and wholly credible, just as it was at each of the two trials in which separate juries found Schwarz guilty.
III. A.
The court may grant a motion for new trial based on newly discovered evidence "if the interests of justice so require." Fed.R.Crim.P. 33. Relevant factors are whether (1) counsel could not have discovered the evidence with due diligence before or during trial; (2) the evidence demonstrates that a witness in fact committed perjury; (3) the new evidence is material; and (4) the new evidence is not cumulative. See United States v. White, 972 F.2d 16, 20-21 (2d Cir. 1992).
The controlling issue is the effect the evidence would have had on the jury's verdict if it had been submitted at trial. See id. at 21. Granting Rule 33 motions is not favored and is done with great caution. See United States v. Wong, 78 F.3d 73, 79 (2d Cir. 1996); United States v. Middlemiss, 217 F.3d 112, 122 (2d Cir. 2000).
Even if one were to assume that Walsh's testimony as to Turetsky's statement was credible, that would not justify overturning the jury verdicts. As noted above, defense counsel could have brought Walsh forward years ago, in time for the first trial. Moreover, Walsh testified that Turetsky said he saw "either" Wiese "or" Schwarz walking Louima towards the bathroom, but he "could not say which." Plainly this did not inject doubt into the testimony of Louima or of Schofield. Walsh did not suggest that Turetsky committed perjury. There is no basis for granting new trials.
B.
The court must grant a motion for new trial under Brady v. Maryland if the government failed to disclose exculpatory evidence to the defense and the suppressed evidence was material. See Wong, 78 F.3d at 79. Brady requires the government to disclose both exculpatory and impeachment evidence. See United States v. Bagley, 473 U.S. 667, 676 (1985).
Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles v. Whitley, 514 U.S. 419, 433 (1995) (internal quotation marks and citations omitted). In other words, evidence is material if it "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." United States v. Payne, 63 F.3d 1200, 1209 (2d Cir. 1995).
Brady requires the government to disclose material exculpatory evidence known to it but does not require the government to disclose all evidence in its possession that might assist defense preparation. See United States v. Zackson, 6 F.3d 911, 918 (2d Cir. 1993) (citing United States v. LeRoy, 687 F.2d 610, 619 (2d Cir. 1982)); Middlemiss, supra, 217 F.3d at 123.
The Court of Appeals has stated that "[i]t is well settled that evidence is not considered to have been suppressed within the meaning of the Brady doctrine if the defendant or his attorney either knew, or should have known of the essential facts permitting him to take advantage of that evidence." United States v. Torres, 129 F.3d 710, 717 (2d Cir. 1997) (internal punctuation and citation omitted); United States v. Orena, 145 F.3d 551, 558 (2d Cir. 1998).
Schwarz cites as purported Brady material, in addition to Walsh's statements, the statements of two officers in their early I.A.B. interviews that they were not sure who took Louima to the bathroom. Schwarz also cites several recollections of witnesses as to whether Louima's pants were up or down at the front desk, observations that were made either by officers whose view of Louima's legs was obstructed, or who left the front desk area before Louima was taken toward the bathroom. Several of the statements inculpate Schwarz as the person leading Louima away from the desk.
Because the defendants already were aware or with due diligence could readily have discovered the statements that they now claim to have been withheld, they suffered no Brady violation. See Zackson, 6 F.3d at 918;Middlemiss, 217 F.3d 112 at 123.
The government provided the names, ranks, job assignments and partners of each of these witnesses, as well as whether they were present in the 70th precinct stationhouse when Louima was there. This information was given to the defense over a year before the first trial, and the court found that it was sufficient under then and still current case law in this circuit to satisfy the government's obligations under Brady andGiglio. See United States v. LeRoy, 687 F.2d 610 (2d Cir. 1982); United States v. Ruggiero, 472 F.2d 599 (1973). The witnesses and their presence or absence at the time of material events were well known to the defendants. Although the defense claims that the fifty-five names submitted by the government overwhelmed their ability to effectively collect exculpatory testimony, far fewer than fifty-five witnesses were relevant to Schwarz's defense.
Defendants failed to prove that they did not know the substance of these witnesses' observations, nor that they were unable to obtain any of the statements they now claim to be of impeachment value.
Furthermore, even if the statements are viewed collectively, they are not Brady material because they are either inculpatory or immaterial. They would not have undermined any critical element of the prosecution's case, and were in fact consistent with that case. No doubt that is why the various defense counsel chose not to call these witnesses at either trial. There is no reasonable probability that they would have put the whole case in such a different light as to undermine confidence in the verdict.
Where substantial evidence of guilt entirely unrelated to the allegedly withheld impeachment evidence exists, as in this case, there is hardly a reasonable probability that the allegedly withheld evidence, if disclosed, would have resulted in a different verdict. See, e.g., United States v. Zagari, 111 F.3d 307, 321 (2d Cir. 1997); United States v. Avellino, 136 F.3d 249, 257 (2d Cir. 1998), reh'g denied, 1998 WL 195636 (2d Cir. Apr. 23, 1998) (per curiam); Payne, supra, 63 F.3d at 1210.
In light of the evidence amassed against Schwarz at two trials in which he was found guilty by two separate juries, the statements claimed by the defense to be Brady material do not approach the level of materiality required for such potential impeachment evidence to undermine confidence in these two verdicts.
Schwarz provides no support for his claim that Walsh's belated version of Turetzky's statements provides a basis to believe that the government "intimidated, importuned, coached or otherwise influenced witnesses to substantiate the premature I.A.B. theory that Schwarz was the second officer involved in the bathroom assault of Louima and to suppress evidence to the contrary."
These are harsh words, but accusations of improper and dishonest acts are not the same as proof. Pointing to minor inconsistencies within and between the various statements of officers at the 70th precinct, well trodden ground in both trials, is not proof. Schwarz suggests that all inconsistent statements contained in all documents in this case should have been turned over to the defense; in other words, urging that the "open file" policy long rejected under Brady jurisprudence should be reinstated. See, e.g., United States v. Agurs, 427 U.S. 97 (1976); United States v. Lino, 2001 WL 8356 at *16 (S.D.N.Y. Dec. 29, 2000); Payne, 63 F.3d at 1209.
The court finds that the affidavit of Sergeant Walsh, in combination with the cumulative evidence not disclosed to the defense, provides no basis to conclude that the government violated its obligations underBrady or Giglio, and does not undermine confidence in either of the two verdicts convicting Schwarz. The court therefore concludes there is no basis for defendants' motion for a new trial.
So ordered.